On the heels of a presidential election in which hundreds of preachers publicly promised to flout Internal Revenue Service rules by endorsing candidates from the pulpit, the Madison-based Freedom From Religion Foundation filed suit against the IRS for failing to enforce electioneering restrictions against churches and religious organizations.

Filed in U.S. District Court for the Western District of Wisconsin, the lawsuit charges that Douglas Shulman, the commissioner of the Internal Revenue Service, "has violated, continues to violate and will continue to violate in the future, the Establishment Clause of the First Amendment to the Constitution of the United States by failing to enforce the electioneering restrictions of 501(c)(3) of the Tax Code against churches and religious organizations."

This section of the tax code prohibits nonprofit organizations and organizations that are exempt from federal income taxes from being involved in political campaigns.

The lawsuit cites "open and notorious violations" of these electioneering restrictions by churches since 2008, including "blatantly partisan full-page ads" from the Billy Graham Evangelistic Association that ran in papers throughout the country leading up to the Nov. 6 election.

In the ad, Graham urges people to vote "for those who protect the sanctity of life and support the biblical definition of marriage between a man and a woman."

Gaylor says the IRS needs to consider the ad in context, including the fact that Graham met with Republican presidential candidate Mitt Romney and reportedly told him, "I'll do all I can to help you. And you can quote me on that."

"That's what the IRS has to look at," says Gaylor. "It's the whole picture."

The lawsuit also charges that the IRS's failure to enforce these electioneering laws violates the equal protection rights of other nonprofits barred from engaging in political activity.

"The non-enforcement of the electioneering restrictions ... against churches and other religious organizations constitutes preferential treatment to churches and religious organizations that is not provided to other tax-exempt organizations, including the FFRF, which are required to comply with the electioneering restrictions..."

In a news release, the Freedom from Religion Foundation refers to a Bloomberg BNA story in which Russell Renwicks, an employee with the IRS's Tax-Exempt and Government Entities division, was quoted as saying the agency had suspended doing tax audits of churches. The release notes an IRS spokesman later claimed that Renwicks "misspoke," but adds that there "appears to be no evidence of IRS inquiries or action in the past three years."

When asked for comment, an IRS spokesman emailed a statement saying that "the IRS does not comment on pending litigation."

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